Case 2:16-cv LDW-AYS Document 3 Filed 12/20/16 Page 1 of 73 PageID #: 15

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1 Case 2:16-cv LDW-AYS Document 3 Filed 12/20/16 Page 1 of 73 PageID #: 15 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK x UNITED STATES OF AMERICA, : : Plaintiff, : : v. : 2:16 Civ (Wexler, J.) (Shields, M.J) : STATE OF NEW YORK, NEW YORK STATE : OFFICE OF PARKS, RECREATION AND HISTORIC PRESERVATION, PALISADES : INTERSTATE PARK COMMISSION, : : Defendants. : x CONSENT JUDGMENT 1

2 Case 2:16-cv LDW-AYS Document 3 Filed 12/20/16 Page 2 of 73 PageID #: 16 TABLE OF CONTENTS I. BACKGROUND... 3 II. OBJECTIVES... 3 III. JURISDICTION AND VENUE... 4 IV. DEFINITIONS... 4 V. DEFENDANTS... 6 VI. LEGAL BACKGROUND... 7 VII. ALLEGATIONS... 7 VIII. APPLICABILITY... 8 IX. CIVIL PENALTY... 9 X. COMPLIANCE REQUIREMENTS XI. SUPPLEMENTAL ENVIRONMENTAL PROJECTS XII. REPORTING REQUIREMENTS XIII. STIPULATED PENALTIES XIV. FORCE MAJEURE XV. DISPUTE RESOLUTION XVI. INFORMATION COLLECTION AND RETENTION XVII. EFFECT OF SETTLEMENT/RESERVATIONS OF RIGHTS XVIII. COSTS XIX. NOTICES XX. EFFECTIVE DATE XXI. RETENTION OF JURISDICTION XXII. MODIFICATION XXIII. TERMINATION XXIV. PUBLIC PARTICIPATION XXV. SIGNATORIES AND SERVICE XXVI. INTEGRATION XXVII. FINAL JUDGMENT

3 Case 2:16-cv LDW-AYS Document 3 Filed 12/20/16 Page 3 of 73 PageID #: 17 I. BACKGROUND WHEREAS, Plaintiff, the United States of America ( United States or Plaintiff ), on behalf of the United States Environmental Protection Agency ( EPA ), has filed a complaint ( Complaint ), concurrently with this Consent Judgment, against Defendants: State of New York; the New York State Office of Parks, Recreation and Historic Preservation ( NYS Parks ); and the Palisades Interstate Park Commission ( the Commission ) (collectively Defendants ), alleging, inter alia, that Defendants operated 54 large capacity cesspools in violation of the Safe Drinking Water Act ( SDWA or the Act ), 42 U.S.C. 300f, et seq., and the regulations promulgated thereunder, 40 C.F.R to ; WHEREAS, the United States and the Defendants (collectively, the Parties ) recognize, and the Court by entering this Consent Judgment finds, that this Consent Judgment has been negotiated by the Parties in good faith and will avoid litigation between the Parties, and that this Consent Judgment is fair, reasonable, and in the public interest; NOW, THEREFORE, before the taking of any testimony, without the adjudication or admission of any issue of fact or law except as provided in Section V and with the consent of the Parties, IT IS HEREBY ADJUDGED, ORDERED, AND DECREED as follows: II. OBJECTIVES 1. It is the express purpose of the Parties in entering into this Consent Judgment to further the objectives of the Act to protect public health by regulating the Nation's public drinking water supply and its sources, for the Defendants to achieve compliance with the Act. 3

4 Case 2:16-cv LDW-AYS Document 3 Filed 12/20/16 Page 4 of 73 PageID #: 18 III. JURISDICTION AND VENUE 2. This Court has jurisdiction over the subject matter of this action pursuant to Section 1423(b) of the SDWA, 42 U.S.C. 300h-2(b), and 28 U.S.C. 1331, 1345, and 1355, and over the Parties. 3. Venue lies in this District pursuant to 28 U.S.C. 1391(b) and (c) and 1395(a) because Defendant NYS Parks is located in this District and a substantial portion of the events giving rise to the claims in the Complaint arose in this District. 4. For purposes of this Consent Judgment, or any action or proceeding to enforce this Consent Judgment, Defendants consent to the Court s jurisdiction over this Consent Judgment, and any such action or proceeding to enforce this Consent Judgment, and consents to venue in this district. 5. For purposes of this Consent Judgment, Defendants agree that the Complaint states a claim upon which relief may be granted pursuant to Section 1423(b) of the SDWA, 42 U.S.C. 300h-2(b). IV. DEFINITIONS 6. Unless otherwise defined herein, terms used in this Consent Judgment shall have the meanings provided in the SDWA and the Underground Injection Control ( UIC ) Regulations as set forth in 40 C.F.R. Part 144. The following definitions apply for the purposes of this Consent Judgment: Act or SDWA shall mean the Safe Drinking Water Act, 42 U.S.C. 300f to 300j-26. Cesspool shall have the definition set forth in 40 C.F.R and Class V Rule shall mean the regulations governing Large-Capacity Cesspools as set forth in 40 C.F.R to

5 Case 2:16-cv LDW-AYS Document 3 Filed 12/20/16 Page 5 of 73 PageID #: 19 Closure shall mean permanent closing of a facility upon submission of a Final Closure Report after following the procedures set forth in the memorandum entitled EPA Region 2 Underground Injection Control (UIC) Program Instructions for Class V Remediation/Closure Plans (Instructions) appended here as Appendix C. Commission shall mean the Palisades Interstate Park Commission. Complaint shall mean the complaint filed by the United States in this action. Consent Judgment or Judgment shall mean this Consent Judgment, Appendices A through D, and all modifications made effective in accordance with Section XXII (Modification). Date of Lodging shall mean the date this Consent Judgment is filed for lodging with the Clerk of the Court for the United States District Court for the Eastern District of New York. Day shall mean a calendar day unless expressly stated to be a business day. In computing any period of time under this Consent Judgment, where the last day would fall on a Saturday, Sunday, or federal holiday, the period shall run until the close of business of the next business day. Defendants shall mean the State of New York, the New York State Office of Parks, Recreation and Historic Preservation, and the Palisades Interstate Park Commission. Documents shall be defined in accordance with Local Civil Rule 26.3 of the Local Rules of the United States District Court for the Eastern District of New York. Effective Date shall have the definition provided in Section XX (Effective Date). EPA shall mean the United States Environmental Protection Agency and any of its successor departments or agencies. Inoperable shall mean that a Large-Capacity Cesspool is no longer usable or in use. Instructions shall mean the EPA Region 2 Underground Injection Control (UIC) Program Instructions for Class V Remediation/Closure Plans ( Instructions ) appended here as Appendix C. Large-Capacity Cesspool or LCC shall mean a Cesspool which is used by a multipledwelling community or regional system, or is a non-residential cesspool that has the capacity to serve 20 or more persons a day. NYSDEC shall mean the New York State Department of Environmental Conservation. NYSDOH shall mean the New York State Department of Health. 5

6 Case 2:16-cv LDW-AYS Document 3 Filed 12/20/16 Page 6 of 73 PageID #: 20 NYS Parks shall mean the New York State Office of Parks, Recreation and Historic Preservation. Paragraph shall mean a portion of this Consent Judgment identified by an Arabic numeral. Parties shall mean the United States and Defendants. PRHPL shall mean the Parks, Recreation, and Historic Preservation Law, NY CLS PRHPL 1.01 to Prohibited LCCs shall mean the 54 LCCs identified in Appendix A. Remediation/Closure Plan shall mean a pre-closure remediation/closure plan that complies with the requirements set forth in the Instructions in Appendix C. Section shall mean, except when citing a provision of the SDWA or other statute or regulation, a portion of this Consent Judgment identified by a Roman numeral. State Park shall mean a public state park located in New York State and which is under the management and/or control of any Defendant. UIC shall have the same definition set forth in 40 C.F.R UIC Regulations shall mean the regulations governing underground injection wells as set forth in 40 C.F.R. Part 144. United States shall mean the United States of America, acting on behalf of EPA. V. DEFENDANTS 7. NYS Parks is an office within the Executive Department of the State of New York, established under the Parks, Recreation, and Historic Preservation Law (PRHPL). 8. NYS Parks manages approximately 180 State Parks in New York State. 9. NYS Parks is responsible for conserving, protecting and enhancing the natural, ecological, historic, cultural, and recreational resources in its system and provides for the public enjoyment of and access to these resources in a way which will protect them for future generations pursuant to PRHPL Section In doing so, NYS Parks must comply with applicable requirements under the SDWA. 6

7 Case 2:16-cv LDW-AYS Document 3 Filed 12/20/16 Page 7 of 73 PageID #: The Commission is a municipal corporation established by a compact between the states of New York and New Jersey, which was approved by the Congress of the United States. 11. The State of New York through the Commissioner of NYS Parks operates and maintains State Parks located in the Palisades Region (NYS Parks 8 th Region), which fall within the Commission s territory. PRHPL, Art. 9; 9 N.Y.C.R.R. Parts 403, 404, et seq. VI. LEGAL BACKGROUND 12. The UIC Regulations, specifically the Class V Rule, promulgated by EPA pursuant to the SDWA, banned the construction of new LCCs nationwide as of April 5, 2000, and required owners or operators of all LCCs to close all such LCCs by April 5, The Class V Rule at 40 C.F.R states that the owner or operator of any type of Class V well cannot allow the movement of fluid into an underground source of drinking water (USDW) that might cause endangerment; must comply with other Federal underground injection control (UIC) requirements in 40 C.F.R. Parts 144 through 147; must comply with any other measures required by the State or EPA Regional Office UIC Program to protect USDWs; and must properly close the well when it is no longer in use. 14. Pursuant to Section 1422(c) of the SDWA, 42 U.S.C. 300h-1(c), EPA has the authority to enforce state-wide compliance with the UIC Regulations and the Class V Rule. VII. ALLEGATIONS 15. The United States alleges in the Complaint that Defendants own and/or operate 54 LCCs ( the Prohibited LCCs ), located in State Parks as listed in Appendix A at which Defendants did not implement the mandatory closure requirements of the Class V Rule, 40 C.F.R by the April 5, 2005 deadline, but that NYS Parks has already begun the process of closing the Prohibited LCCs as identified and described in Appendix B. 7

8 Case 2:16-cv LDW-AYS Document 3 Filed 12/20/16 Page 8 of 73 PageID #: The United States alleges in the Complaint that the Prohibited LCCs are located in State Parks in the following counties: Suffolk (33), Nassau (3), Broome (1), Clinton (4), Columbia (1), Orange (8), Rensselaer (1), and Schoharie (3). Appendix A is a summary table of the Prohibited LCCs, which include the name and address of each State Park location containing one or more Prohibited LCCs. 17. The United States alleges in the Complaint that the Commission owns and jointly operates with NYS Parks eight of the 54 Prohibited LCCs. These eight Prohibited LCCs are located in Orange County. VIII. APPLICABILITY 18. The obligations of this Consent Judgment apply to and are binding upon the United States and Defendants, and any successors, assigns or other entities or persons otherwise bound by law. 19. Except as otherwise provided in this Consent Judgment, Defendants are jointly and severally responsible for meeting the obligations of this Consent Judgment as to the Prohibited LCCs that are located in Orange County as identified in Appendix A. For all other Prohibited LCCs, State of New York and NYS Parks are jointly and severally responsible for meeting the obligations set forth in this Consent Judgment. 20. No transfer of ownership or operation of any of the Prohibited LCCs, whether in compliance with the procedures of this Paragraph or otherwise, shall relieve Defendants of their obligation to ensure that the terms of this Consent Judgment are implemented. At least 30 Days prior to any such transfer, Defendants shall provide a copy of this Consent Judgment to the proposed transferee and shall simultaneously provide written notice of the prospective transfer, together with a copy of the proposed transfer agreement, to the United States and EPA, in 8

9 Case 2:16-cv LDW-AYS Document 3 Filed 12/20/16 Page 9 of 73 PageID #: 23 accordance with Section XIX (Notices). No later than five days after the completion of such transfer, Defendants shall provide an executed copy of the written agreement to the United States in accordance with Section XIX (Notices) of this Consent Judgment. Any attempt to transfer ownership or operation of any of the State Parks subject to this Consent Judgment without complying with this Paragraph constitutes a violation of this Consent Judgment and shall be subject to the stipulated penalties described in Paragraph 60 (Compliance Milestones). Notwithstanding the foregoing, if any of the State Parks subject to this Consent Judgment are transferred by action of the New York State Legislature, Defendants may seek appropriate relief under Section XIV (Force Majeure) or Rule 60(b) of the Federal Rules of Civil Procedure. 21. Defendants shall provide a copy of this Consent Judgment to all officials, and employees whose duties might reasonably include compliance with any provision of this Consent Judgment. Defendants shall also provide any contractor retained to perform work required under this Consent Judgment any sections or appendices of this Consent Judgment relevant to such contractor s performance of work. Defendants shall condition any such contract upon performance of the work in conformity with the terms of this Consent Judgment. 22. In any action to enforce this Consent Judgment, Defendants shall not raise as a defense the failure by any of its officials, directors, employees, agents, or contractors to take any actions necessary to comply with the provisions of this Consent Judgment. IX. CIVIL PENALTY 23. Defendants shall pay the sum $150,000 as a civil penalty within 30 days of the Effective Date. 24. Defendants shall pay the civil penalty described in the preceding Paragraph at to the United States Department of Justice account, in accordance with 9

10 Case 2:16-cv LDW-AYS Document 3 Filed 12/20/16 Page 10 of 73 PageID #: 24 instructions to be provided to Defendants by the Financial Litigation Unit of the United States Attorney s Office for the Eastern District of New York ( FLU ) after the Effective Date. The payment instructions provided by the FLU shall include a Consolidated Debt Collection System ( CDCS ) number, which Defendants shall use to identify all payments required to be made in accordance with this Consent Judgment. The FLU will provide the payment instructions within ten days of the Effective Date via to Carol Casale, NYS Parks Director of Finance (Carol.Casale@parks.ny.gov) on behalf of Defendants. Defendants may change the individual to receive payment instructions on its behalf by providing written notice of such change to the United States and EPA in accordance with Section XIX (Notices). 25. At the time of payment, Defendants shall send notice that payment has been made to: (i) EPA via at acctsreceivable.cinwd@epa.gov or via regular mail at EPA Cincinnati Finance Office, 26 Martin Luther King Drive, Cincinnati, Ohio 45268; and (ii) the United States via or regular mail in accordance with Section XIX (Notices). Such notice shall reference the civil action number, USAO number 2015V02731, and Department of Justice case number X. COMPLIANCE REQUIREMENTS 26. Defendants shall fully comply with the Class V Rule, 40 C.F.R et seq., by closing the Prohibited LCCs or by otherwise converting them to lawful non-lcc uses. 27. Defendants shall not install or operate any new LCCs upon premises it owns, operates, leases or otherwise controls. 28. For each Prohibited LCC, Defendants shall submit, for EPA review and approval, proposed Remediation/Closure plans. Defendants shall submit such plans by the deadlines specified in Appendix B. Defendants must prepare their proposed Remediation/Closure plans in 10

11 Case 2:16-cv LDW-AYS Document 3 Filed 12/20/16 Page 11 of 73 PageID #: 25 accordance with the Instructions or if EPA further updates such Instructions, in accordance with such update. 29. Defendants shall implement the Closure of each Prohibited LCC in accordance with the EPA-approved or EPA-modified Remediation/Closure Plan. Defendants must complete the Closure of each Prohibited LCC or render each Prohibited LCC Inoperable by either the deadline specified in the Closure Schedule column entitled LCC INOPERABLE attached hereto as Appendix B (Closure Schedule), or within 60 days after EPA approves or modifies Defendants Remediation/Closure Plan, whichever date is later. 30. Defendants shall submit the Final Report as required by Paragraph K of the Instructions within 30 days of each Prohibited LCC being rendered Inoperable. 31. Approval of Deliverables: After review of any plan, report, or other item that is required to be submitted pursuant to this Consent Judgment, EPA shall in writing: (a) approve the submission; (b) approve the submission upon specified conditions; (c) approve part of the submission and disapprove the remainder; or (d) disapprove the submission. 32. If the submission is approved pursuant to Paragraph 31 (Approval of Deliverables), Defendants shall take all actions required by the plan, report, or other document, in accordance with the schedules and requirements of the plan, report, or other document, as approved. If the submission is conditionally approved or approved only in part pursuant to Paragraph 31 (b) or (c), Defendants shall, upon written direction from EPA, take all actions required by the approved plan, report, or other item that EPA determines are technically severable from any disapproved portions, subject to Defendants right to dispute only the specified conditions or the disapproved portions, under Section XV (Dispute Resolution). 11

12 Case 2:16-cv LDW-AYS Document 3 Filed 12/20/16 Page 12 of 73 PageID #: If the submission is disapproved in whole or in part pursuant to Paragraph 31(c) or (d), Defendants shall, within 45 days or such other time as the Parties agree to in writing, correct all deficiencies and resubmit the plan, report, or other item, or disapproved portion thereof, for approval, in accordance with the preceding Paragraphs. If the resubmission is approved in whole or in part, Defendants shall proceed in accordance with the preceding Paragraph. 34. If a resubmitted plan, report, or other item, or portion thereof, is disapproved in whole or in part, EPA may again require Defendants to correct any deficiencies, in accordance with the preceding Paragraphs, or may itself correct any deficiencies, subject to Defendants right to invoke Dispute Resolution and the right of EPA to seek stipulated penalties as provided for in this Consent Judgment. 35. Any stipulated penalties applicable to the original submission, as provided in Section XIII, shall accrue during the 45 day period or other specified period, but shall not be payable unless the resubmission is untimely or is disapproved in whole or in part; provided that, if the original submission was so deficient as to constitute a material breach of Defendants obligations under this Judgment, the stipulated penalties applicable to the original submission shall be due and payable notwithstanding any subsequent resubmission. 36. Permits: Where any compliance obligation under this Section requires Defendants to obtain applicable federal, state, or local permits or approvals, if any, Defendants shall submit timely and complete applications and take all other actions necessary to obtain all such permits or approvals. Defendants may seek relief under the provisions of Section XIV (Force Majeure) for any delay in the performance of any such obligation resulting from a failure to obtain, or a delay in obtaining, any permit or approval required to fulfill such obligation, if Defendants have 12

13 Case 2:16-cv LDW-AYS Document 3 Filed 12/20/16 Page 13 of 73 PageID #: 27 submitted timely and complete applications and have taken all other actions necessary to obtain all such permits or approvals. 37. The compliance requirements of this Consent Judgment do not relieve Defendants of any compliance obligations required by the Act or its implementing regulations, or by any other federal or state law, regulation, permit, or other requirement. XI. SUPPLEMENTAL ENVIRONMENTAL PROJECTS 38. Defendants shall implement the following supplemental environmental projects (SEPs), in accordance with all provisions of this Section as set forth below. Each of the following SEPs are intended to reduce the quantity of nutrients harmful to water quality, including nitrogen, from entering the local groundwater. a. Robert Moses State Park: Defendants shall install a urine separation system in the Field 5 Comfort Station at Robert Moses State Park which system shall separate the urinals in the men s portion of the comfort station from the remaining sanitary piping and divert the collected urine to a holding tank. The tank shall be periodically pumped and the urine taken to a NYSDEC-approved wastewater treatment facility. Parks and EPA may also jointly decide to send the urine to another treatment site that is approved by EPA. b. Connetquot River State Park Preserve: Defendants shall install nitrogen reducing technology for sanitary waste at the Hatchery Comfort Station and Residence. c. Hallock State Park: Defendants shall install nitrogen reducing technology for sanitary waste in the Visitor s Center. d. Captree State Park SEP 1: Defendants shall install a constructed wetland for sanitary waste treatment to benefit the Main Comfort Station and Restaurant. 13

14 Case 2:16-cv LDW-AYS Document 3 Filed 12/20/16 Page 14 of 73 PageID #: 28 e. Sunken Meadow State Park: Defendants shall install a urine separation system in the Year Round Bathroom, Field No. 1, which system shall separate the urinals in the men s portion of the comfort station at Field 1 from the remaining sanitary piping and divert the collected urine to a holding tank. The holding tank shall be periodically pumped and the urine taken to a NYSDEC-approved wastewater treatment facility. Parks and EPA may also jointly decide to send the urine to another treatment site that is approved by EPA. f. Wildwood State Park: Defendants shall install a urine separation system in the East Camp Comfort Station which system shall separate the urinals in the men s portion of the comfort station at the East Camp comfort station from the remaining sanitary piping and divert the collected urine to a holding tank. The holding tank shall be periodically pumped and the urine taken to a NYSDEC-approved wastewater treatment facility. Parks and EPA may also jointly decide to send the urine to another treatment site that is approved by EPA. g. Caumsett State Historic Park: Defendant shall install a urine separation system in the New Calf Barn Comfort Station and Master Garage which system shall separate the urinals in the men s portion of the comfort stations at the Calf Barn and Masters Garage from the remaining sanitary piping and divert the collected urine to a holding tank. The holding tank shall be periodically pumped and the urine taken to a NYSDEC-approved wastewater treatment facility. Parks and EPA may also jointly decide to send the urine to another treatment site that is approved by EPA. h. Captree State Park SEP 2: Defendants shall install green technology site improvements for stormwater treatment. Defendants shall retrofit the existing stormwater drainage facilities at Captree State Park with a bioretention system. 39. Appendix D attached hereto sets forth a list and description of each SEP. 14

15 Case 2:16-cv LDW-AYS Document 3 Filed 12/20/16 Page 15 of 73 PageID #: All SEPs must be completed within three years after the Effective Date. 41. Defendants are responsible for the satisfactory completion of each SEP in accordance with the requirements of this Consent Judgment. Defendants may use contractors or consultants in planning and implementing each SEP. 42. With regard to each SEP, Defendants certify the truth and accuracy of each of the following: a. that all cost information provided to EPA in connection with EPA s approval of the SEP is complete and accurate. Defendants in good faith estimate that the cost to implement each SEP is as follows: i. Robert Moses State Park: $75,000 ii. Connetquot River State Park Preserve: $125,000 iii. Hallock State Park: $100,000 iv. Captree State Park SEP 1: $250,000 v. Sunken Meadow State Park: $50,000 vi. Wildwood State Park: $60,000 vii. Caumsett State Historic Park: $110,000 viii. Captree State Park SEP 2: $250,000 b. that, as of the date of executing this Consent Judgment, Defendants are not required to perform or develop the SEP by any federal, state, or local law or regulation, and are not required to perform or develop the SEP by agreement, grant, or as injunctive relief awarded in any other action in any forum; 15

16 Case 2:16-cv LDW-AYS Document 3 Filed 12/20/16 Page 16 of 73 PageID #: 30 c. that each SEP is not a project that Defendants were planning or intending to construct, perform, or implement other than in settlement of the claims resolved in this Consent Judgment; d. that Defendants have not received and will not receive credit for the SEP in any other enforcement action; e. that Defendants will not receive any reimbursement for any portion of the SEP from any other person; and f. that Defendants are not a party to any open federal financial assistance transaction that is funding or could fund the same activity as the SEPs described in Paragraph 38. For purposes of this certifications, the term open federal financial assistance transaction refers to a grant, cooperative agreement, loan, federally-guaranteed loan guarantee, or other mechanism for providing federal financial assistance whose performance period has not yet expired. 43. SEP Completion Reports: Within 30 days after the completion of each SEP, Defendants shall submit a SEP Completion Report to the United States, in accordance with Section XIX (Notices). Each SEP Completion Report shall contain the following information: a. a detailed description of the SEP as implemented; b. a description of any problems encountered in completing the SEP and the solutions thereto; c. a certification that the SEP has been fully implemented pursuant to the provisions of this Consent Judgment; and d. a description of the environmental and public health benefits resulting from implementation of the SEP (with a quantification of the benefits and pollutant reductions, if feasible). 16

17 Case 2:16-cv LDW-AYS Document 3 Filed 12/20/16 Page 17 of 73 PageID #: EPA may, in its sole discretion, require information in addition to that described in the preceding Paragraph, in order to evaluate Defendants SEP Completion Report. 45. After receiving a SEP Completion Report, the United States shall notify Defendants whether it finds that Defendants have satisfactorily completed the SEP. If the United States finds that Defendants have not satisfactorily completed the SEP in accordance with this Consent Judgment, stipulated penalties may be assessed as set forth in Section XIII (Stipulated Penalties). 46. Disputes concerning the satisfactory performance of the SEPs may be resolved under the dispute resolution procedures of Section XV (Dispute Resolution). No other disputes arising under this Section shall be subject to Dispute Resolution. 47. Each submission required under this Section shall be signed by an official with knowledge of the SEP and shall bear the certification language set forth in Paragraph Any prepared public statement, oral or written, in print, film, or other media, made by Defendants making reference to any SEP implemented in accordance with this Consent Judgment shall include the following language: This nitrogen reduction project, which was designed and funded by the New York State Office of Parks, Recreation and Historic Preservation, was undertaken in connection with the settlement of an enforcement action, United States v. New York State Office of Parks, Recreation and Historic Preservation, taken on behalf of the United States Environmental Protection Agency under the Safe Drinking Water Act. XII. REPORTING REQUIREMENTS 49. Semi-Annual Reports. Defendants shall submit in writing to the United States and EPA a report (Semi-Annual Report) for the preceding semi-annual period. The first Semi-Annual Report shall be issued on March 31, 2017, and subsequent Semi-Annual will be issued every six 17

18 Case 2:16-cv LDW-AYS Document 3 Filed 12/20/16 Page 18 of 73 PageID #: 32 months thereafter (September 30, 2017, etc.) until termination of this Consent Judgment. The Semi-Annual Report shall address the LCC closure work and SEPs required under this Consent Judgment, including: a. A description of the work completed during the preceding six months; b. The status of efforts to complete closure of each Prohibited LCC and to complete each SEP, and addressing: (i) permitting, (ii) funding, (iii) approval of plans, (iv) approvals from the State Comptroller, (v) bids, (vi) contracting, (vii) work performed, (viii) problems encountered or anticipated, together with implemented or proposed solutions, (ix) description of each milestone due to be completed during the relevant quarter, the deadlines for such milestones; (x) the status of achievement of each milestone; and (xi) a description of any work that was due but not completed. c. A description of the work to be performed during the following six-month period, and addressing each of the items listed in sub-paragraph 49(b). 50. Final Report. Concurrent with Defendants request that this Consent Judgment be terminated pursuant to Paragraph 107, Defendants shall submit to the EPA a final report (Final Report) that shall provide an evaluation of their experience in implementing the requirements set forth in Sections X (Compliance Requirements) and XI (Supplemental Environmental Projects) of this Consent Judgment. This evaluation is to be provided subsequent to Defendants having fulfilled all of their obligations under this Consent Judgment, and shall include: (i) a description of the elements of the compliance requirements and/or SEPs that Defendants anticipate continuing after termination of the Consent Judgment; and (i) a description of the elements of the compliance requirements and/or SEPs that Defendants anticipate continuing in a modified form. 18

19 Case 2:16-cv LDW-AYS Document 3 Filed 12/20/16 Page 19 of 73 PageID #: 33 This evaluation shall not be a basis for stipulated penalties or any other violation under this Consent Judgment. 51. If Defendants fail to comply with, violate, or have reason to believe that they may violate, any requirement of this Consent Judgment, Defendants shall notify the United States of such violation and its likely duration, in writing, within 14 Days of the Day Defendants first become aware of the violation, with an explanation of the violation s likely cause and of the remedial steps taken, or to be taken, to prevent or minimize such violation. If the cause of a violation cannot be fully explained at the time the report is due, Defendants shall so state in the report. Defendants shall investigate the cause of the violation and shall then submit an amendment to the report, including a full explanation of the cause of the violation, within 30 Days of the Day Defendants becomes aware of the cause of the violation. Nothing in this Paragraph or the following Paragraph relieves Defendants of their obligation to provide the notice required by Section XIV (Force Majeure). 52. Whenever any violation of this Consent Judgment or any other event affecting Defendants performance under this Consent Judgment may pose an immediate threat to the public health or welfare or the environment, Defendants shall notify EPA orally or by electronic or facsimile transmission as soon as possible, but no later than 24 hours after Defendants first knew of the violation or event. This procedure is in addition to the requirements set forth in the preceding Paragraph. 53. All reports shall be submitted to the persons designated in Section XIX (Notices). 54. Each report, notice, protocol, plan, or other document submitted by Defendants under this Consent Judgment shall be signed by an official of the applicable defendant and shall include the following certification: 19

20 Case 2:16-cv LDW-AYS Document 3 Filed 12/20/16 Page 20 of 73 PageID #: 34 I certify under penalty of law, that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on any personal knowledge I may have and my inquiry of the person or persons who manage the system, or those persons directly responsible for gathering the information, the information submitted is, to the best of my knowledge and belief, true, accurate, and complete. I have no personal knowledge that the information submitted is other than true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations. 55. This certification requirement does not apply to emergency or similar notifications where compliance would be impractical. 56. The reporting requirements of this Consent Judgment do not relieve Defendants of any reporting obligations required by the SDWA or its implementing regulations, or by any other federal, state, or local law, regulation, permit, or other requirement. 57. Any information provided pursuant to this Consent Judgment may be used by the United States in any proceeding to enforce the provisions of this Consent Judgment and as otherwise permitted by law. XIII. STIPULATED PENALTIES 58. Defendants shall be jointly and severally liable to the United States for stipulated penalties for violations of this Consent Judgment in accordance with this Section, unless excused under Section XIV (Force Majeure) or Section XV (Dispute Resolution), except that Defendant Palisades Interstate Parks Commission shall be liable for only violations of this Consent Judgment as it pertains to prohibited LCCs located in Orange County, New York as identified in Exhibit A. A violation includes failing to perform any obligation required by the terms of this Consent Judgment, according to all applicable requirements of this Consent Judgment and within the specified time schedules established by or approved under this Consent Judgment. 20

21 Case 2:16-cv LDW-AYS Document 3 Filed 12/20/16 Page 21 of 73 PageID #: Late Payment of Civil Penalty. If Defendants fail to pay the civil penalty required to be paid pursuant to Section IX (Civil Penalties) when due, Defendants shall pay a stipulated penalty of $500 per Day for each Day that the payment is late. Late payment of the obligations stated in Section IX (Civil Penalties) shall be made in accordance with the payment instructions provided in that Section. Stipulated penalties under this Paragraph shall be paid as provided in this Section. 60. Compliance Milestones: The following penalties shall accrue per violation per Day for each violation for failure to comply with the requirements of Section X (Compliance Requirements) and Appendix B of this Consent Judgment, unless otherwise specified in this Section: Days of Non-Compliance Or Violation Day 1 through Day 30 $ Penalty per Day per Violation Day 31 through Day 59 $1, th Day and beyond $2, Reporting Requirements. The following stipulated penalties shall accrue per Day per violation for each violation of the reporting requirements set forth in Section XII (Reporting Requirements). Days of Non-Compliance Or Violation Day 1 through Day30 $ Day 31 through Day 59 $ Penalty per Day per Violation 60 th Day and beyond $2, SEP Compliance. The following stipulated penalties shall accrue for each violation of the SEP requirements set forth in Section XI and Appendix C of this Consent Judgment: 21

22 Case 2:16-cv LDW-AYS Document 3 Filed 12/20/16 Page 22 of 73 PageID #: 36 a. If Defendants fail to comply with the completion date set forth in paragraph 40 (Supplemental Environmental Projects) for implementing one or more of the SEPs, Defendants shall pay stipulated penalties as follows, for each SEP for which Defendants fail to meet an applicable deadline: Days of Non-Compliance Or Violation Penalty per Day per Violation Day 1 through Day 30 $ Day 31through Day 59 $ th Day and beyond $ b. If Defendants fail to implement any SEP in accordance with the provisions of this Consent Judgment, Defendants shall pay a stipulated penalty in the amount of the relevant SEP(s) cost estimate(s) for the non-implemented SEP(s) as listed in Paragraph 42(a), plus an additional 20% (e.g., if Defendants fail to implement a SEP with a cost estimate of $50,000, the stipulated penalty would be $60,000). The penalty under this Sub-paragraph shall accrue as of the date specified for completing the SEP(s) or the date performance ceases, whichever is earlier. 63. Except as otherwise specified in this Consent Judgment, the stipulated penalties provided for in this Consent Judgment shall begin to accrue on the Day after performance is due or on the Day that a violation occurs, whichever is applicable, and shall continue to accrue until performance is satisfactorily completed or until the violation ceases. Stipulated penalties shall accrue simultaneously for separate violations of this Consent Judgment. 64. Defendants shall pay any stipulated penalty within 30 Days of receiving a written demand from the United States. 65. The United States may, in the unreviewable exercise of its discretion, reduce or waive stipulated penalties otherwise due it under this Consent Judgment without further order of the Court. 22

23 Case 2:16-cv LDW-AYS Document 3 Filed 12/20/16 Page 23 of 73 PageID #: Stipulated penalties shall continue to accrue as provided in this Section during any dispute resolution process, but need not be paid until the following: a. If the dispute is resolved by agreement or by a decision of EPA that is not appealed to the Court, Defendants shall pay accrued penalties determined to be owing, together with interest, to the United States within 30 Days of the Effective Date of the agreement or the receipt of EPA s decision. b. If the dispute is appealed to the Court and the United States prevails in whole or in part, Defendants shall pay all accrued penalties determined by the Court to be owing, together with interest, within 30 Days of receiving the Court s decision or order, except as provided in subparagraph c of this Paragraph. c. If any Party appeals the Court s decision and the United States prevails in whole or in part, Defendants shall pay all accrued penalties determined to be owing, together with interest, within 30 Days of receiving the final appellate court decision. 67. Obligations Prior to the Effective Date. Upon the Effective Date of this Consent Judgment, the stipulated penalty provisions of this Consent Judgment shall be retroactively enforceable with regard to any and all violations of Sections X (Compliance Requirements) and XI (SEPs), and Appendix B, that have occurred from the day that Defendants signed this Consent Judgment through the Effective Date, provided that stipulated penalties that may have accrued prior to the Effective Date may not be collected unless and until this Consent Judgment is entered by the Court. 68. NYS Parks shall not be liable for stipulated penalties for any milestones in Appendix B that are marked. 23

24 Case 2:16-cv LDW-AYS Document 3 Filed 12/20/16 Page 24 of 73 PageID #: Defendants shall, as directed by the United States in its demand, pay stipulated penalties owing to the United States in accordance with the instructions to be provided by the FLU. Payment of stipulated penalties shall be accompanied by transmittal correspondence that specifies that the payment is for stipulated penalties due under this Consent Judgment to be deposited into the U.S. Treasury pursuant to 31 U.S.C. 3302, and shall reference the case name and number. Defendants shall send a copy of the transmittal correspondence to the United States as provided in Section XIX (Notices). 70. If Defendants fail to pay stipulated penalties according to the terms of this Consent Judgment, Defendants shall be liable for interest on such penalties, as provided for in 28 U.S.C. 1961, accruing as of the date payment became due. 71. Non-Exclusivity of Remedy. Stipulated penalties are not the United States exclusive remedy for violations of this Consent Judgment. Subject to the provisions of Section XVII (Effect of Settlement/Reservation of Rights), the United States expressly reserves the right to seek any other relief it deems appropriate for Defendants violation of this Judgment or applicable law, including but not limited to an action against Defendants for statutory penalties, additional injunctive relief, mitigation or offset measures, and/or contempt. However, the amount of any statutory penalty assessed for a violation of this Consent Judgment shall be reduced by an amount equal to the amount of any stipulated penalty assessed and paid pursuant to this Consent Judgment. XIV. FORCE MAJEURE 72. Force majeure, for purposes of this Consent Judgment, is defined as any event arising from causes beyond the control of Defendants, of any entity controlled by Defendants, or of Defendants contractors that delays or prevents the performance of any obligation under this 24

25 Case 2:16-cv LDW-AYS Document 3 Filed 12/20/16 Page 25 of 73 PageID #: 39 Consent Judgment despite Defendants best efforts to fulfill the obligation. The requirement that Defendants exercise best efforts to fulfill the obligation includes using best efforts to anticipate any potential force majeure event and best efforts to address the effects of any potential force majeure event (a) as it is occurring and (b) following the potential force majeure, such that the delay and any adverse effects of the delay are minimized. Force majeure does not include Defendants financial inability to perform any obligation under this Consent Judgment. 73. If any event occurs or has occurred that may delay the performance of any obligation under this Consent Judgment, whether or not caused by a force majeure event, Defendants shall provide notice orally and by electronic or facsimile transmission to the United States and EPA, in accordance with the notice provisions of Section XIX (Notices) within 72 hours of when any Defendant first knew that the event might cause a delay. Within seven days thereafter, Defendants shall provide in writing to the United States and EPA an explanation and description of the reasons for the delay; the anticipated duration of the delay; all actions taken or to be taken to prevent or minimize the delay; a schedule for implementation of any measures to be taken to prevent or mitigate the delay or the effect of the delay; Defendants rationale for attributing such delay to a force majeure event if it intends to assert such a claim; and a statement as to whether, in the opinion of Defendants, such event may cause or contribute to an endangerment to public health, welfare or the environment. Defendants shall include with any notice all available documentation supporting the claim that the delay was attributable to a force majeure. Failure to comply with the above requirements shall preclude Defendants from asserting any claim of force majeure for that event for the period of time of such failure to comply, and for any additional delay caused by such failure. Defendants shall be deemed to 25

26 Case 2:16-cv LDW-AYS Document 3 Filed 12/20/16 Page 26 of 73 PageID #: 40 know of any circumstance of which Defendants, any entity controlled by Defendants, or Defendants contractors knew or should have known. 74. If EPA agrees that the delay or anticipated delay is attributable to a force majeure event, the time for performance of the obligations under this Consent Judgment that are affected by the force majeure event will be extended by EPA for such time as is necessary to complete those obligations. An extension of the time for performance of the obligations affected by the force majeure event shall not, of itself, extend the time for performance of any other obligation. EPA notify Defendants in writing of the length of the extension, if any, for performance of the obligations affected by the force majeure event. 75. If EPA does not agree that the delay or anticipated delay has been or will be caused by a force majeure event, the United States will notify Defendants in writing of its decision. The decision of the United States shall be binding, unless Defendants invoke the dispute resolution procedures set forth in Section XV (Dispute Resolution). 76. If Defendants elects to invoke the dispute resolution procedures set forth in Section XV (Dispute Resolution), it shall do so no later than 21 Days after receipt of EPA s notice. In any such proceeding, Defendants shall have the burden of demonstrating by a preponderance of the evidence that the delay or anticipated delay has been or will be caused by a force majeure event, that the duration of the delay or relief sought was or will be warranted under the circumstances, that best efforts were exercised to avoid and mitigate the effects of the delay, and that Defendants complied with the requirements of this Section. If Defendants carry this burden, the delay at issue shall be deemed not to be a violation by Defendants of the affected obligations of this Consent Judgment identified to the United States and the Court. 26

27 Case 2:16-cv LDW-AYS Document 3 Filed 12/20/16 Page 27 of 73 PageID #: 41 XV. DISPUTE RESOLUTION 77. Unless otherwise expressly provided for in this Consent Judgment, the dispute resolution procedures of this Section shall be the exclusive mechanism to resolve disputes arising under or with respect to this Consent Judgment. Defendants failure to seek resolution of a dispute under this Section shall preclude Defendants from raising any such issue as a defense to an action by the United States to enforce any obligation of Defendants arising under this Consent Judgment. 78. Informal Dispute Resolution: Any dispute subject to Dispute Resolution under the procedures set forth in this Section shall first be the subject of informal negotiations. The dispute shall be considered to have arisen when Defendants send the United States a written Notice of Dispute. Such Notice of Dispute shall state clearly the matter in dispute. The period of informal negotiations shall not exceed 30 Days from the date the dispute arises, unless that period is modified by written agreement. If the Parties cannot resolve a dispute by informal negotiations, then the position advanced by the United States shall be considered binding unless, within 45 Days after the conclusion of the informal negotiation period, Defendants invoke the formal dispute resolution procedures as set forth below. 79. Formal Dispute Resolution. Defendants shall invoke formal dispute resolution procedures, within the time period provided in the preceding Paragraph, by serving on the United States a written Statement of Position regarding the matter in dispute. The Statement of Position shall include, but need not be limited to, any factual data, analysis, or opinion supporting Defendants position and any supporting documentation relied upon by Defendants. 80. The United States shall serve its Statement of Position upon Defendants within 45 Days of receipt of Defendants statement of position. The United States Statement of Position 27

28 Case 2:16-cv LDW-AYS Document 3 Filed 12/20/16 Page 28 of 73 PageID #: 42 shall include, but need not be limited to, factual data, analysis, or opinion supporting that position and supporting documentation relied upon by the United States. The United States Statement of Position shall be binding on Defendants, unless Defendants file a motion for judicial review of the dispute, in accordance with the following Paragraph. 81. Defendants may seek judicial review of the dispute by filing with the Court, and serving on the United States, in accordance with Section XIX (Notices), a motion requesting judicial resolution of the dispute. The motion or, if the Court requires the filing of a pre-motion letter before the filing of a motion, pre-motion letter must be filed within 30 Days of receipt of the United States Statement of Position pursuant to the preceding Paragraph. The motion shall contain a written statement of Defendants position on the matter in dispute, including any supporting factual data, analysis, opinion, or documentation, and shall set forth the relief requested and any schedule within which the dispute must be resolved for orderly implementation of the Consent Judgment. 82. The United States shall respond to Defendants motion within the time period allowed by the Local Rules of this Court. Defendants may file a reply memorandum, to the extent permitted by the Local Rules. 83. Standard of Review. a. Disputes Concerning Matters Accorded Record Review. Except as otherwise provided in this Consent Judgment, in any dispute brought under Paragraph 79 pertaining to the adequacy or appropriateness of LCC closure plans, procedures to implement closure plans, schedules or any other items requiring approval by EPA under this Consent Judgment; the adequacy of the performance of work undertaken pursuant to this Consent Judgment for all disputes that are accorded review on the administrative record under applicable 28

29 Case 2:16-cv LDW-AYS Document 3 Filed 12/20/16 Page 29 of 73 PageID #: 43 principles of administrative law, Defendants shall have the burden of demonstrating, based on the administrative record, that the position of the United States is arbitrary and capricious, or otherwise not in accordance with law and that Defendants position complies with this Consent Judgment and the SDWA, and that Defendants are entitled to relief under applicable law. b. Other Disputes. Except as otherwise provided in this Consent Judgment, in any other dispute brought under Paragraph 79 Defendants shall bear the burden of proving that their position complies with this Consent Judgment and is consistent with the objectives of this Consent Judgment. 84. The invocation of the dispute resolution procedures under this Section shall not, by itself, extend, postpone, or affect in any way any obligation of Defendants under this Consent Judgment, unless and until final resolution of the dispute so provides. Stipulated penalties with respect to the disputed matter shall continue to accrue from the first Day of noncompliance, but payment shall be stayed pending resolution of the dispute as provided in Paragraph 66. If Defendants do not prevail on the disputed issue, stipulated penalties shall be assessed and paid as provided in Section XIII (Stipulated Penalties). XVI. INFORMATION COLLECTION AND RETENTION 85. The United States and its representatives, including attorneys, contractors, and consultants, shall have the right of entry into any State Park covered by this Consent Judgment, at all reasonable times, upon representation of credentials to the park facility manager, to: a. monitor the progress of activities required under this Consent Judgment; b. verify any data or information submitted to the United States in accordance with the terms of this Consent Judgment; 29

30 Case 2:16-cv LDW-AYS Document 3 Filed 12/20/16 Page 30 of 73 PageID #: 44 c. obtain samples and, upon request, splits of any samples taken by Defendants or their representatives, contractors, or consultants; d. obtain documentary evidence, including photographs and similar data; and e. assess Defendants compliance with this Consent Judgment. 86. Upon request, Defendants shall provide EPA or its authorized representatives with splits of any samples taken by Defendants pursuant to Section X (Compliance Requirements). Upon request, EPA shall provide Defendants splits of any samples taken by EPA. 87. EPA s rights under Paragraphs 85 and 86 are in addition to any rights that United States or EPA may have under applicable laws, regulations, or permits, including to be provided with samples. 88. Defendants shall retain, and shall instruct their contractors and agents to preserve, all non-identical copies of all Documents, records, or other information (including Documents, records, or other information in electronic form) in its or its contractors or agents possession or control, or that come into its or its contractors or agents possession or control, and that relate in any manner to Defendants performance of their obligations under this Consent Judgment until five years after the termination of this Consent Judgment. This information-retention requirement shall apply regardless of any contrary State or institutional policies or procedures. At any time during this information-retention period, upon request by the United States, Defendants shall provide copies of any non-privileged Documents, records, or other information required to be maintained under this Paragraph. 89. At the conclusion of the information-retention period provided in the preceding Paragraph, Defendants shall notify the United States at least 90 Days prior to the destruction of 30

31 Case 2:16-cv LDW-AYS Document 3 Filed 12/20/16 Page 31 of 73 PageID #: 45 any documents, records, or other information subject to the requirements of the preceding Paragraph and, upon request by the United States, Defendants shall deliver any such documents, records, or other information to EPA. Defendants may assert that certain documents, records, or other information is privileged under the attorney-client privilege or any other privilege recognized by federal law. If Defendants assert such a privilege, it shall provide the following: (a) the title of the document, record, or information; (b) the date of the document, record, or information; (c) the name and title of each author of the document, record, or information; (d) the name and title of each addressee and recipient; (e) a description of the subject of the document, record, or information; and (f) the privilege asserted by Defendants. However, the final version of documents, records, or other information that must be provided to EPA pursuant to the requirements of this Consent Judgment shall not be withheld on grounds of privilege. 90. Defendants may also assert that information required to be provided under this Section is protected as Confidential Business Information (CBI) under 40 C.F.R. Part 2. As to any information that Defendants seek to protect as CBI, Defendants shall follow the procedures set forth in 40 C.F.R. Part This Consent Judgment in no way limits or affects any right of entry and inspection, or any right to obtain information, held by the United States or EPA pursuant to applicable laws, regulations, or permits, nor does it limit or affect any duty or obligation of Defendants to maintain Documents, records, or other information imposed by applicable laws, regulations, or permits. XVII. EFFECT OF SETTLEMENT/RESERVATIONS OF RIGHTS 92. This Consent Judgment resolves the civil claims of the United States for the violations alleged in the Complaint filed in this action through the Date of Lodging. 31

32 Case 2:16-cv LDW-AYS Document 3 Filed 12/20/16 Page 32 of 73 PageID #: The United States reserves all legal and equitable remedies available to enforce the provisions of this Consent Judgment. This Consent Judgment shall not be construed to limit the rights of the United States to obtain penalties or injunctive relief under the SDWA or under other federal or state laws, regulations, or permit conditions except as to those claims resolved pursuant to this Consent Judgment as set forth in Paragraph 92. The United States further reserves all legal and equitable remedies to address any imminent and substantial endangerment to the public health or welfare or the environment arising at, or posed by, the Prohibited LCCs, whether related to the violations addressed in this Consent Judgment or otherwise. 94. In any subsequent administrative or judicial proceeding initiated by the United States for injunctive relief, civil penalties, other appropriate relief relating to the Prohibited LCCs, Defendants shall not assert, and may not maintain, any defense or claim based upon the principles of waiver, res judicata, collateral estoppel, issue preclusion, claim preclusion, claimsplitting, or other defenses, based upon any contention that the claims raised by the United States in the subsequent proceeding were or should have been brought in the instant case, except with respect to claims that have been specifically resolved pursuant to Paragraph This Consent Judgment is not a permit, or a modification of any permit, under any applicable federal or state, or local laws or regulations. Defendants are responsible for achieving and maintaining complete compliance with all applicable federal, state, and local laws, regulations, and permits (if any); and Defendants compliance with this Consent Judgment shall be no defense to any action commenced pursuant to any such laws, regulations, or permits, except as set forth herein. The United States does not, by its consent to the entry of this Consent Judgment, warrant or aver in any manner that Defendants compliance with any aspect of this 32

33 Case 2:16-cv LDW-AYS Document 3 Filed 12/20/16 Page 33 of 73 PageID #: 47 Consent Judgment will result in compliance with any provision of the SDWA, or with any other provisions of any applicable federal state, or local laws, regulations, or permits. 96. This Consent Judgment does not limit or affect the rights of Defendants or of the United States against any third parties, not party to this Consent Judgment, nor does it limit the rights of third parties, not party to this Consent Judgment, against Defendants, except as otherwise provided by law. 97. This Consent Judgment shall not be construed to create rights in, or grant any cause of action to, any third party not party to this Consent Judgment. 98. The Defendants obligations under Paragraph 23 (Civil Penalties) and Sections X (Compliance Requirements) and XI (SEPs) can only be paid from appropriated funds legally available for such purpose. If no appropriated funds are legally available for such purpose, Defendants shall use best efforts to obtain new appropriated funds legally available for such purpose. Nothing in this Consent Judgment is a commitment or requirement that the Defendants will obligate or pay funds in contravention of the New York State Constitution, New York State Finance Law Section 41, or any other applicable provision of law. For purposes of this Paragraph, best efforts means that the Defendants must each actively take steps to seek new appropriations to meet Defendants obligations under Paragraph 23 and Sections X and XI, and must seek from EPA, in writing, extensions of any applicable deadline set forth in this Consent Judgment until such time as funds are secured to cover the cost of the commitments set forth herein. Nothing in this Paragraph affects Defendants obligations or the rights reserved by the United States under this Consent Judgment, including, but not limited to, those specified in Paragraph

34 Case 2:16-cv LDW-AYS Document 3 Filed 12/20/16 Page 34 of 73 PageID #: 48 XVIII. COSTS 99. The Parties shall bear their own costs of this action, including attorneys fees, except that the United States shall be entitled to collect the costs (including attorneys fees) incurred in any action necessary to collect any portion of the civil penalty or any stipulated penalties due but not paid by Defendants. XIX. NOTICES 100. Unless otherwise specified in this Consent Judgment, all notifications, submissions, or communications required by this Consent Judgment shall be made in writing and addressed as follows: To the United States: Matthew Silverman Assistant United States Attorney United States Attorney s Office Eastern District of New York 271 Cadman Plaza East, 7 th Floor Brooklyn, NY To the EPA: Phyllis Feinmark, Chief Water and General Law Branch Office of Regional Counsel U.S. Environmental Protection Agency, Region Broadway, 16th Floor New York, NY Douglas McKenna, Chief Water Compliance Branch U.S. Environmental Protection Agency, Region Broadway, 20th Floor New York, NY To Defendants: Paul J. Laudato General Counsel N.Y.S. Office of Parks, Recreation 34

35 Case 2:16-cv LDW-AYS Document 3 Filed 12/20/16 Page 35 of 73 PageID #: 49 and Historic Preservation 625 Broadway Albany, NY Counsel@parks.ny.gov Yueh-ru Chu Assistant Attorney General Office of the Attorney General Environmental Protection Bureau 120 Broadway, 26th floor New York, NY Any Party may, by written notice to the other Party, change its designated notice recipient or notice address provided above Notices submitted pursuant to this Section shall be deemed submitted upon mailing, unless otherwise provided in this Consent Judgment or by mutual agreement of the Parties in writing. XX. EFFECTIVE DATE 103. The Effective Date of this Consent Judgment shall be the date upon which this Consent Judgment is entered by the Court or a motion to enter the Consent Judgment is granted, whichever occurs first, as recorded on the Court s docket; provided, however, that Defendants hereby agree that they shall be bound to perform duties scheduled to occur prior to the Effective Date. In the event the United States withdraws or withholds consent to this Consent Judgment before entry, or the Court declines to enter the Consent Judgment, then the preceding requirement to perform duties scheduled to occur before the Effective Date shall terminate. XXI. RETENTION OF JURISDICTION 104. The Court shall retain jurisdiction over this action until termination of this Consent Judgment, for the purposes of resolving disputes arising under this Consent Judgment, entering orders modifying this Consent Judgment, pursuant to Sections XV (Dispute Resolution) 35

36 Case 2:16-cv LDW-AYS Document 3 Filed 12/20/16 Page 36 of 73 PageID #: 50 and XXII (Modification), or effectuating or enforcing compliance with the terms of this Consent Judgment. XXII. MODIFICATION 105. The terms of this Consent Judgment, including its appendices, may be modified only by a subsequent written agreement signed by both Parties. Where the modification constitutes a material change to this Consent Judgment, it shall be effective only upon approval by the Court Any disputes concerning modification of this Consent Judgment shall be resolved in accordance with the dispute resolution procedures of Section XV (Dispute Resolution), except that the Party seeking the modification must demonstrate that it is entitled to the requested modification for one of the reasons set forth in Federal Rule of Civil Procedure 60(b). XXIII. TERMINATION 107. After Defendants have: (i) completed all of the requirements set forth in Sections X (Compliance Requirements) and Section XI (Supplemental Environmental Projects) to the satisfaction of the United States; and (ii) paid the civil penalty and any accrued stipulated penalties as required by this Consent Judgment, Defendants may serve upon the United States a Request for Termination, stating that Defendants have satisfied those requirements, together with all necessary supporting documentation Following receipt by the United States of Defendants Request for Termination, the Parties shall confer informally concerning the request and any disagreement that the Parties may have as to whether Defendants have satisfactorily complied with the requirements for termination of this Consent Judgment. If the United States agrees that this Consent Judgment 36

37 Case 2:16-cv LDW-AYS Document 3 Filed 12/20/16 Page 37 of 73 PageID #: 51 may be terminated, the Parties shall submit, for the Court s approval, a joint stipulation terminating this Consent Judgment If the United States does not agree that this Consent Judgment may be terminated, Defendants may invoke dispute resolution under Section XV (Dispute Resolution). However, Defendants shall not seek dispute resolution for any dispute regarding termination until 90 Days after service of its Request for Termination. XXIV. PUBLIC PARTICIPATION 110. This Consent Judgment shall be lodged with the Court for a period of not less than 30 Days for public notice and comment in accordance with 28 C.F.R The United States reserves the right to withdraw or withhold its consent to the entry of this Consent Judgment if the comments regarding the Consent Judgment disclose facts or considerations indicating that this Consent Judgment is inappropriate, improper, or inadequate. Defendants consent to entry of this Consent Judgment without further notice and agree not to withdraw from or oppose entry of this Consent Judgment by the Court or to challenge any provision of this Consent Judgment, unless the United States has notified Defendants in writing that it no longer supports entry of this Consent Judgment. Defendants consent to entry of this Consent Judgment. XXV. SIGNATORIES AND SERVICE 111. Each undersigned representative of Defendants, and the Assistant Attorney General for the Environment and Natural Resources Division of the Department of Justice certifies that he or she is fully authorized to enter into the terms and conditions of this Consent Judgment and to execute and legally bind the Party he or she represents to the terms of this Consent Judgment. 37

38 Case 2:16-cv LDW-AYS Document 3 Filed 12/20/16 Page 38 of 73 PageID #: This Consent Judgment may be signed in counterparts, and its validity shall not be challenged on that basis. Defendants agree to accept service of process by mail with respect to all matters arising under or relating to this Consent Judgment and to waive the formal service requirements set forth in Rules 4 and 5 of the Federal Rules of Civil Procedure and any applicable Local Rules of this Court including, but not limited to, service of a summons. The Parties agree that Defendants need not file answers to the Complaint in this action unless or until this Court expressly declines to enter this Consent Judgment. XXVI. INTEGRATION 113. The following Appendices to this Consent Judgment are part of the Consent Judgment and fully enforceable as if set forth within this Consent Judgment: Appendix A Appendix B Appendix C Prohibited LLCs Closure Schedule EPA Region 2 UIC Program Instructions for Class V Remediation/Closure Plans, last modified March 16, Appendix D List and description of NYS Parks SEPs 114. This Consent Judgment constitutes the final, complete, and exclusive agreement and understanding among the Parties with respect to the settlement embodied in this Consent Judgment and supersedes all prior agreements and understandings, whether oral or written, concerning the settlement embodied herein. Other than deliverables that are to be subsequently submitted and approved pursuant to this Consent Judgment, no other document, nor any representation, inducement, agreement, understanding, or promise, constitutes any part of this Consent Judgment or the settlement it represents, nor shall it be used in construing the terms of this Consent Judgment. 38

39 Case 2:16-cv LDW-AYS Document 3 Filed 12/20/16 Page 39 of 73 PageID #: 53 XXVII. FINAL JUDGMENT 115. Upon approval and entry of this Consent Judgment by the Court, this Consent Judgment shall constitute a final judgment of the Court as between the Parties. * * * * * * * * * * DATED and ENTERED this day of, 2017: LEONARD D. WEXLER UNITED STATES DISTRICT JUDGE 39

40 Case 2:16-cv LDW-AYS Document 3 Filed 12/20/16 Page 40 of 73 PageID #: 54 The Parties, by their undersigned representatives, enter into this Consent Judgment in United States v. State of New York, New York State Office of Parks, Recreation and Historic Preservation and the Palisades Interstate Park Commission. FOR THE UNITED STATES OF AMERICA: nt Attorney General ronmental and Natural Resources Division U.S. Department of Justice ROBERT L. CAPERS United States Attorney for the Eastern District of New York By: MATTHEW SILVERMAN Assistant United States Attorney United States Attorney's Office Eastern District of New York 271 Cadman Plaza East Brooklyn, NY Dated: Washington, D.C. December 19, 2016, Attorneys for the United States of America 40

41 Case 2:16-cv LDW-AYS Document 3 Filed 12/20/16 Page 41 of 73 PageID #: 55 FOR THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY: Regional Co U.S. Environmental Protection Agency, Region Broadway New York, NY OF COUNSEL: LAUREN FISCHER Assistant Regional Counsel Water and General Law Branch U.S. Environmental Protection Agency, Region Broadway New York, NY

42 Case 2:16-cv LDW-AYS Document 3 Filed 12/20/16 Page 42 of 73 PageID #: 56